ELECTORAL COMMISSION OF JAMAICA - REPORT TO PARLIAMENT
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ELECTORAL COMMISSION
OF JAMAICA
REPORT TO PARLIAMENT
Continuing Legal Reform
OCTOBER, 2010
INTRODUCTION
The Jamaican electoral system has made great progress over the last 31 years since the
establishment of the Electoral Advisory Committee. This has been a result of the collective effort of
a large number of persons at the national, parish and community levels. These persons have
included members of government, political parties, religious denominations, civil society
organizations and concerned individuals. This progress has been recognized by the international
community. The Organization of American States (OAS) identified Jamaica as one of the leading
countries in the Western Hemisphere in the application of information technology and
communication systems to the electoral process. The Commonwealth Secretariat is highlighting
Jamaica for best practices in good governance in the area of the conduct of elections and the
delineation of constituency boundaries.
Despite this progress and international recognition there is still room for continued improvements in
some areas. This Report addresses the issue of continued legal reform that, in the opinion of the
Electoral Commission, will further strengthen and enhance the electoral process. Specifically, the
Report recommends amendments to the Electoral Commission (Interim) Act of 2006 and also to the
Representation of the People Act (the ROPA) that will have the effect of improving different
aspects of the operation of the electoral machinery. Each set of amendments will be presented in
turn.
AMENDMENTS TO THE ELECTORAL COMMISSION (INTERIM) ACT
AND ENTRENCHMENT OF THE ELECTORAL COMMISSION OF
JAMAICA IN THE CONSTITUTION OF JAMAICA.
The Electoral Commission (Interim) Act of 2006 gave effect to the establishment of the Electoral
Commission. It gives the Commission the authority to safeguard the democratic foundations of
Jamaica by enabling eligible electors at periodic intervals to elect their representatives through free
and fair elections. It also gives the Commission the responsibility to advise Parliament on the
number of constituencies into which Jamaica should be divided and their boundaries.
The Act anticipates that the Electoral Commission would, in due course of time, be entrenched in
the Constitution of Jamaica. Accordingly, the Commission submitted to Parliament a Report dated
October 1, 2008 recommending such entrenchment and now further recommends that such
entrenchment be effected under section 49 (2) of the said Constitution. Experience since the passage
of the Act and the establishment of the Commission in December 1, 2006 has suggested that some
clauses of the Act should be fine tuned so that they are more consistent with standard and
established practices that have been highly successful in enabling the efficient operation of the
Commission. The existing formulation of these clauses has resulted in them being observed mainly
in the breach. This is undesirable. In addition, experience of the Commission suggests a small
change in the composition of the Commission as well as the need to widen the advisory functions of
the Commission within the public sector beyond only giving advice to Parliament on boundaries.
Against this background the Commission recommends the amendments to the Electoral
Commission (Interim) Act, 2006 as set out below:
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RECOMMENDED AMENDMENTS TO THE ELECTORAL COMMISSION
(INTERIM) ACT, 2006.
• Under the heading ‘Functions of the Commission’ amend section 6 (1) of the Act by
including a new sub paragraph (1) (p) to read “the giving of general advice on all
matters related to the electoral process to Cabinet, statutory bodies and any
person or entity falling within the authority of the Government of Jamaica”.
• Amend section 8 (3) of the Act by substituting for the words contained therein the
following words “For the purposes of subsection (1), the “prescribed rate”
means a rate prescribed by the Government of Jamaica for comparable posts in
the public sector, or such higher rate as the Committee may, upon the advice of
the Commission, by order prescribe.
• Further amend section 8 by adding the following as subsection (6) “Any person
appointed as enumerator, verifier, returning officer, assistant returning officer,
presiding officer, poll clerk, polling station security assistant, technician or
other personnel or any person temporarily appointed by the Commission to
carry out functions associated with the registration of electors and/or holding of
elections shall be paid at the rate prescribed by the Commission.”
• Under the First Schedule of the Electoral Commission (Interim) Act amend the
following:
- Amend section 1 – (1) by deleting the word ‘nine’ and substituting
therefor the word ‘eight’. The section would now read “The Commission
shall consist of eight members”.
- Amend section 1(c) by deleting all the words appearing after the words
‘sub-paragraphs (a) and (b)’ and by substituting therefor the words “and
shall be entitled to attend meetings of the Commission as required but
shall not be eligible to vote at such meetings.” The full text of section 1
(c) to read thus:
The Director of Elections shall be appointed on the recommendation of
the eight Commissioners appointed under sub-paragraphs (a) and (b) and
shall be entitled to attend meetings of the Commission as required but
shall not be eligible to vote at such meetings.
- Amend section 7 (1) (Remuneration of members) by deleting the words
“other than the Director of Elections”.
- Further amend section 7 by adding the following as Section 7 (2) “The
emoluments payable to the Chairman shall be equated to the
emoluments which may, from time to time, be payable to the Senior
Puisne Judge”.
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- Re-numbering the existing section 7 (2) as 7 (3) , 7 (3) as 7(4) , 7(4) as
7(5) and 7 (5) as 7 (6).
• Amend section 20(1) of the Act by deleting the words “with the approval of the
Minister”.
RECOMMENDED AMENDMENTS TO THE REPRESENTATION OF THE
PEOPLE ACT
1. The former Electoral Advisory Committee had submitted a Report to Parliament, dated
October 3rd, 2006, which Report was tabled but not debated and approved. It addressed two
matters of concern:
(i) The use of motor vehicles and their regulation for conveying voters to the poll.
(ii) The Constituted Authority.
The Electoral Commission has taken the decision to incorporate these two matters in the current
Report. Accordingly, this Report addresses the following matters:
• The transfer of indoor agents within polling stations in a constituency;
• A new clause designed to prohibit the use of any recording device by an elector prior
to, during, or after the marking of the ballot in the polling station;
• The postponement of elections;
• The use of motor vehicles and their regulation for conveying voters to the poll;
• The Constituted Authority.
2. Currently, the Representation of the People Act stipulates that all Candidates should be
provided with four copies of the Official Voters’ List on Nomination Day following their
nomination. The ROPA also stipulates that within seven days after Nomination Day the
Returning Officer shall deliver or send by registered post to each candidate a copy of a
military voters’ list, a police voters’ list and an Election Officers voters’ list prepared in
relation to each constituency. What the ROPA does not currently require is that the civil
voters’ list, that is, the Official Voters’ List minus the military, police and Election Officers
voters’ lists, be also provided to Candidates at the same time as the other three lists.
Presently, this does not allow Candidates the time to independently verify that the police list,
military list, Election Officers list and civil list add up exactly to the Official Voters’ List.
Consequently, this has the potential to lead to suspicion about the civil list which is used in
polling stations on Election Day. The amendment proposed is that all four components of
the Official List be distributed to Candidates at the same time prior to Election Day.
43. Currently, the Representation of the People Act allows Candidates to apply for the transfer
of agents from the polling division of original registration to another polling division to
which they have been appointed to serve. The transfer is effected, provided that the
Returning Officer receives a written notification from the candidate not less than forty-eight
hours before the opening of the poll. As a result of substantial increase in the number of
such applications, Returning Officers and the Commission need more time to process and
effect such applications. In addition, The Commission is recommending the prohibition of
transfer of candidates’ agents between polling stations within the same polling location.
4. Digital technology has made it possible for cameras to be included in a wide range of
devices and has also made it easy to transport such devices. One of the foundations of
democracy is the secrecy of the ballot. Digital cameras, cellular telephones and similar
devices can be used by electors to record their ballots, thus violating the principle of the
secrecy of the ballot. The Commission is recommending that the ROPA be amended to
include a provision prohibiting the use of any recording device, digital or otherwise, to be
used by electors to record their ballot after it has been marked and to make violation of such
prohibition subject to the same penalty as other violations of the secrecy of the ballot.
5. The use of Motor Vehicles and their regulation for conveying voters to the poll.
The Electoral Commission is of the view that in this post-modern era the sections of the
Representation of the People Act that apply to the use of motor vehicles to convey voters to
the poll (Section 71), the registration of motor vehicles as electoral vehicles (Section 72), the
special provisions relating to urban constituencies (Section 73) and the restrictions on users
of registered electoral vehicles (Section 74) are no longer necessary and should be deleted
from the Representation of the People Act.
6. The Constituted Authority
Under section 44A of the Representation of the People Act the Constituted Authority which
comes into effect whenever an election notice is issued is comprised of:
“The ‘three’ selected members of the Committee and two other persons one of whom shall
be a retired judge; and one of whom shall be a member of the Privy Council.”
The Electoral Commission (Interim) Act of 2006 increased the number of selected members
on the Electoral Commission from three to four. In order to achieve congruence with the
relevant section of the Representation of the People Act it is necessary to amend the number
of selected members on the Constituted Authority from three to four.
7. In 2007 there was the unprecedented event of a General Election that had been duly called
being postponed by virtue of the fact that a hurricane had struck the country in the period
between Nomination Day and Election Day. Reflection and due consideration of matters
related to this unprecedented occurrence now result in recommendations to amend the
section of the Representation of the People Act (ROPA) dealing with the postponement of
elections.
5Currently, the Representation of the People Act allows for the postponement of elections by the
Governor General in Council. The Commission is recommending that Sections 20 (d) and (e) of the
Representation of the People Act should be amended so that advice to the Governor General would
come from the Constituted Authority.
SPECIFIC RECOMMENDATIONS
• Time and Manner of Delivery of Official List of electors to Candidates
It is recommended that section 18 of the Representation of the People Act be amended to
add in the last line after the word “election” the words:
“Not later than eight days after the date designated as Nomination Day, every Returning
Officer shall furnish to each candidate who has been duly nominated to contest the
election in the constituency over which the Returning Officer has authority, four (4)
copies of the official list of electors in force for such elections, disaggregated into four
(4) parts as follows:
- Military Voters’ List
- Police Voters’ List
- Election Officers Voters’ List
- Civil Voters’ List”
• Delete section 28(3) (b) of the Act.
• Transfer of electors in special cases
It is recommended that section 105 of the Representation of the People Act (and the
corresponding sections of the Parish Council and Kingston and St. Andrew Corporation
Acts) be amended by deleting the words “Forty-eight hours” wherever they appear and by
substituting therefor the words “Seventy-two hours”. Further, it is recommended that
section 105 be amended to prohibit the transfer of agents of candidates between polling
stations within the same polling location.
• Use of Cellular phone, digital camera, or other recording device to capture the image
of the marked ballot
It is recommended that Section 35 of the ROPA should be amended as follows:
1. Amend subsection (7) by inserting and indenting in line three thereof after
the word ‘Act’, the numeric symbol (i) followed by the words ‘intentionally
displays his ballot paper so as to make known to any person the candidate for
6or against whom he intends to vote’ and by deleting the full stop after the
word ‘vote’ and by substituting therefor a semi-colon followed by the word
‘or’ and the symbol (ii) followed by the words ‘uses a cellular phone, digital
camera or other device to record, photograph or otherwise capture the image
of a marked ballot paper’.
2. Amend subsection (8) in line (1) one of the said subsection by adding the
numeric symbols (i) and (ii) after the word and figure ‘subsection (7)’.
3. Further amend subsection (8) by adding a paragraph ‘d’ to read:
‘(d). pursuant to subsection (7)(ii) the presiding officer shall so deface
the ballot as to render it a spoiled ballot and shall not thereafter
deliver a second ballot paper to the elector’.
4. Amend subsection (9) in line three thereof to insert immediately after the
‘(7)’ the numeric symbol ‘(i)’.
It is intended, therefore, that section 35, sub-sections (7), (8) and (9) as amended should now
read as follows:
35 (7) The provisions set out in subsection (8) shall apply in any case where an
elector, except as otherwise permitted by this Act-
(i). intentionally displays his ballot paper so as to make
known to any person the candidate for or against whom he
intends to vote; or
(ii). uses a cellular phone, digital camera or other device to
record, photograph or otherwise capture the image of a
marked ballot paper.
(8) The provisions referred to in subsection (7) are as follows-
(a) the presiding officer shall issue a warning to the elector in
relation to the display;
(b) the elector shall forthwith restore the ballot paper to the
presiding officer;
(c) the presiding officer shall –
(i) so deface the ballot so as to render it a spoiled ballot;
and
(ii) deliver a second ballot paper to the elector.
(d) pursuant to subsection (7)(ii) the presiding officer shall so
deface the ballot paper as to render it a spoiled ballot and shall
not thereafter deliver a second ballot paper to the elector.
7(9) Where, pursuant to subsection (8), an elector has been given a second ballot
paper and acts in the manner described in subsection (7) (i) in relation to
that second ballot paper the provisions of subsection (8) (a), (b) and (c) (i)
shall apply, and no further ballot paper shall be delivered to the elector.
• Repeal of sections 71-74 of the Act.
• Amend section 76 of the Act appropriately to reflect the repeal of sections 71-74.
• Amend Section 44A (3) (a) of the Representation of the People Act by deleting the word
“three” and by substituting therefor the word “four”, and by deleting the word “Committee”
and by substituting therefor the word “Commission”.
• Amend Section 44A (5) of the Representation of the People Act by deleting the words “four
fifths” and by substituting therefor the word “five-sixth”.
• Postponement of Elections
It is recommended that Section 20 of the Representation of the People Act be amended to
read:
20 – (1.1) where at any time between the making of any proclamation under subsection (1)
of section 19 and the day appointed by such proclamation for the holding of the poll at any
election the Governor-General in Council is satisfied that it is expedient so to do by reason
of–
(a) Her Majesty’s government having become engaged or being likely to
become engaged in any war; or
(b) The occurrence of any earthquake, hurricane, flood, fire, outbreak of
pestilence or outbreak of infectious disease or other calamity whether
similar to the foregoing or not; or
(c) The proclamation of any state of emergency under the Emergency
Powers Act; or
(1.2) the Governor General advised by the Constituted Authority is satisfied that it is
expedient so to do by reason of –
(d) The likelihood that the official lists for all constituencies for any
particular constituency will not be printed before the day appointed
under section 19 for the holding of the poll or that any essential
electoral supplies or materials will not be available in adequate
quantities upon such day; or
8(e) Riot, open violence or other civil disturbance resulting in such
interruption, obstruction, obstruction or abandonment of the electoral
process as to prejudice the holding of a fair election,
he may by proclamation adjourn the holding of the poll to some other day specified in such
proclamation not being more than thirty days after the day specified in the proclamation
under section 19.
(2) Any proclamation under subsection (1) made pursuant to the provisions of
paragraph (c), (d) or (e) of sub-section (1) may be expressed to apply only to
such constituencies as are specified in such proclamation in which event the
poll shall be taken in any constituencies not so specified upon the day
appointed for the taking of the poll under section 19.
(3) Where any proclamation is made under this section the writs for all
constituencies to which such proclamation applies shall be deemed to have
been amended by the substitution for the day specified in such writs as being
the day for the holding of the poll of the day so specified in such
proclamation.
(4) Where any proclamation under this section is made before the day which
would have been nomination day if such proclamation had not been made,
nomination day shall be deemed to have been adjourned to the twenty-third
day next before the day to which the holding of the poll is adjourned by such
proclamation.
Provided that if such twenty-third day is Sunday or a public holiday nomination day shall be
deemed to be adjourned to the first day not being Sunday or a public holiday after such
twenty-third day.
(5) Where any proclamation is made under this section after nomination day the
adjournment by such proclamation of the day upon which the poll is taken
shall in no way affect the validity of any nomination validly made upon
nomination day and no other nomination shall be made.
(6) Where any proclamation is made under this section subsequent to the day on
which members of the regular force in the Jamaica Defence Force or
members of the Jamaica Constabulary Force or Special Constables or
Election Officers, vote in accordance with any provisions of this Act which
provides for voting by such persons upon some day other than an election
day, the votes cast by such members of the Regular Force in the Jamaica
Defence Force or the Jamaica Constabulary Force or Special Constables or
Election Officers, as the case may be, shall be preserved by such person and
in such manner as may be prescribed until the day next but two before the
day on which the poll is taken in accordance with the provisions of this
section, and upon such day shall be dealt with as if such had been the day
9next but two before the day originally appointed under section 19 for the
holding of the poll.
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